Premises Liability: Border Wall Edition

A lawyer holding a law book.

In a political climate where everything from how often cows pass gas to whether you should be arrested for using plastic straws is suddenly a hot-button topic, perhaps no issue has been more politicized and aggrandized than illegal immigration.

A war of words has raged on regarding such inane topics as whether it’s appropriate to call individuals “illegal aliens” if they have emigrated here illegally (spoiler alert: the definition of “alien” includes someone belonging to another country or nation and is not a label exclusive to little green creatures who kidnap drunken middle-aged men who wander through corn fields in the night) or whether illegal immigration is a grave security threat to our nation (spoiler alert: the vast majority of illegal immigrants are hard-working, law-abiding individuals who are searching for a better way of life or fleeing danger). However, due to the inability of many politicos and pundits to find a middle ground or cease pushing an agenda, immigration has dominated the headlines over the past few years, with President Trump promising to enforce the strictest immigration policy known to date and those who vehemently oppose him calling for no restrictions to be placed on immigration at all. This has resulted in some cities declaring themselves “sanctuary cities” and refusing to cooperate with federal immigration laws when they require the deportation of individuals who are not in the country legally. Depending on which side of the government-issued fence you are on, a sanctuary city is either a victory for human rights in that it protects individuals from deportation, or a threat to security in that it places other citizens at risk by obstructing the deportation of individuals who might be violent or otherwise a threat for whom federal law calls for deportation.

A lawyer holding a law book called Premises Liability.

In response to the advent of sanctuary cities, Republican Senator Thom Thillis of North Carolina has introduced legislation titled the Justice for Victims of Sanctuary Cities Act, which aims to penalize sanctuary cities when they protect individuals from deportation who then go on to injure a victim through the commission of a violent crime. While it should be no surprise that Senator Thillis is opposed to the establishment of sanctuary cities, it is quite surprising that in an effort to combat them he has essentially turned to the common-law personal injury doctrine of premises liability. President Trump highlighted this legislation during his State of the Union address and asked Congress to pass the legislation. As Congress seems to be unable to agree on anything besides wasting our tax dollars on its own entertainment, it seems unlikely to become law in this current political landscape. However, the Act’s reliance on premises liability principles still makes for an intriguing discussion.

Premises liability, along with auto accident or car wreck injuries, is one of the most frequently discussed and litigated branches of personal injury in both Tennessee and the nation. While most often associated with injuries resulting from a slip-and-fall or some similar-type injury, the concept of “premises liability” actually refers to the concept that the person who owns or maintains property is responsible for the safety of others that use the property. Very often, that property owner has invited or allowed guests to use the property or is actually making a profit off of the use of the property by some individual, who is then injured in some fashion while on the property. In such situations, the law states that the property owner has a duty to keep the premises safe from dangerous conditions or hazards which might injure others who use the property. When the property owner has failed to fulfill that duty, he or she is said to be negligent, meaning the person breached their duty to provide a safe premise for its guests by not taking reasonable precautions. If a party is injured by some condition on the property, that party must then prove that the defective or dangerous condition was the proximate cause of its injuries, simply meaning that the injuries it sustained were actually caused by the defective or dangerous condition that existed on the property and not by some other cause. For example, if your neighbor had steps that did not have a handrail, but you fell down the steps because you were scrolling through cat videos on your phone while walking and missed a step, you cannot legitimately claim that anything besides your love of cats actually caused your fall. Thus, in any premises liability case, you have a duty, a breach of that duty constituting negligence, an injury, and the issue of causation. While experienced personal injury attorneys are certainly familiar with these terms, it is rather unfamiliar to see them applied in an immigration or political context. That is, however, exactly what the Justice for Victims of Sanctuary Cities Act seeks to accomplish by creating a cause of action whereby victims injured by illegal immigrants can sue the cities responsible for not deporting those individuals and ostensibly allowing them to remain in the United States, giving them an opportunity to commit violent crimes.

In the context of the Justice for Victims of Sanctuary Cities Act, the sanctuary cities themselves are positioned as the property owners. They control the city and are responsible for the safety of its citizens. Cities have superior knowledge than ordinary citizens with regard to the dangers that face all citizens situated within the city, just as a property owner should be more familiar with the dangers and hazards existent on his own property than would an invitee, guest or customer who uses the property infrequently. It is on the basis of this superior knowledge and control that the proposed legislation seeks to impose a duty on sanctuary cities to protect their citizens from being injured by individuals who might be dangerous or pose a safety threat in some fashion. The duty in this instance is the duty to comply with ICE detainers and other immigration mechanisms to ensure that individuals are deported or otherwise subjected to immigration-related government action rather than obstructing the immigration process, as sanctuary cities are designed to do (hence the term “sanctuary”). The breach of duty in the sanctuary city context is the failure to comply with federal law and thereby subjecting the local populace to the danger posed by whatever individual or individuals are allowed to remain in the sanctuary city that would otherwise be removed through immigration enforcement. The injury required under the Justice for Victims of Sanctuary Cities Act is an injury caused by a violent crime, such as a burglary, assault or homicide offense, committed by an individual who was allowed to remain in the sanctuary city due to the city’s refusal to comply with federal immigration mandates. The proximate cause of the injury in such situations would be proving that the injury was in fact caused by the individual in question and that the individual would not have been in a position to injure the victim if the sanctuary city had complied with immigration enforcement. In short, just as Tennessee law seeks to impose liability on property owners who fail to take reasonable steps to ensure the safety of others on their property, the Justice for Victims of Sanctuary Cities Act seeks to impose liability on sanctuary cities for failing to take the reasonable step of complying with federal law in order to ensure the safety of their citizens.

The glaring issues in this proposed legislation beg discussion on an important premises liability principle that determines the outcome of many cases. That principle is the concept of notice. Under Tennessee law, a property owner has a duty to protect others based primarily on his superior knowledge of conditions that might exist on the property and generally cannot be held liable for failing to remedy a dangerous or defective condition if the owner did not or should not have notice that the condition existed. For example, if a child is injured by a swing set that just happened to break while in use, but was otherwise in good repair and showed no indications of improper assembly or maintenance, it is unlikely the property owner will be held liable, as she did not have notice that the condition would occur so that she could take steps to prevent its occurrence. Likewise, it will be a tenuous legal argument to assert that a city should be held liable for the violent acts of an illegal immigrant that injures a third party solely by virtue of allowing that individual to remain in the city, if the offending individual had never demonstrated a propensity for violent behavior previously, such that the city did not know that he or she posed a danger to the community. Thus, such cases would involve complex issues such as whether the city had notice of a danger posed by the offender, the inherent tension involved in enforcing the removal of illegal aliens but not other dangerous offenders who are in the country legally, proving that the individual would not have been able to injure the victim if not for the city’s inaction, examining the length of time between the city’s refusal to enforce immigration policy and the occurrence of the violent crime (would the individual have had time to be removed from the country and return to the city), did the city even have knowledge of that particular individual’s existence within the city, and so on. Many of these issues are murky, divisive, and open to interpretation given whatever your political bias happens to be, meaning that if this legislation passes there is a great likelihood that it will make its way to the United States Supreme Court and will be upheld or struck down depending on which political party Chief Justice Roberts decides to belong to that morning, or whether Justice Ginsburg can keep up her Weekend at Bernie’s routine long enough to vote against it. Regardless of the outcome, it is certainly interesting to see the concept of premises liability used to aid in immigration enforcement, and will make for good theater in the event it is able to gain some traction.